Wednesday, February 18, 2015

Cert petition before the Supreme Court on whether exonerated defendant can sue New Orleans parish prosecutor's office, ... again

A new case has reached the Supreme Court on whether an exonerated criminal defendant who spent years in prison after a prosecutor violated the duty to disclose exculpatory evidence can recover for damages. The case is called Truvia v. Connick and you can read the certiorari petition here. (And, before you ask, yes, that is the same Harry Connick, whose office was involved in Connick v. Thompson and Smith v. Cain).

As you probably remember, in Connick v. Thompson, the defendant conceded that the
prosecutor in the case against the plaintiff John Thompson did not comply
with his obligations under Brady. Thompson was convicted and spent 18 years in prison, 14 of them isolated on death row, before his conviction was reversed. He sued and won a multi-million dollar verdict, but the Supreme Court, in a five-four opinion by Justice Thomas, reversed holding that there was no evidence of a deliberate indifference to the
rights of persons or a pattern of similar constitutional violations. The dissenters in the case argued the evidence was sufficient stating that "the evidence presented to the jury that awarded
compensation to Thompson . . . points distinctly away from the Court’s
assessment. As the trial record ... reveals, the
conceded, long-concealed prosecutorial transgressions were neither
isolated nor atypical." (It is now known that the DA's office’s failure to
disclose exculpatory evidence led to the exoneration of at least twelve
people since 1990.)

A year later, after listening to the oral arguments in Smith v. Cain, during which the justices discussed the history of misconduct at the same prosecutors' office, maybe the Court would have been ready to accept the fact that there was a pattern of misconduct. However, that was not at issue in that case and the Court simply (and almost unanimously, Justice Thomas being the only dissenter) reversed the conviction because of the prosecutor's misconduct.

The new petition before the court involves two men who were exonerated after 27 years
behind bars. After their convictions were vacated, the filed a complaint asserting claims under 42 U.S.C.
§ 1983 for constitutional violations arising from the prosecutors misconduct in not disclosing exculpatory evidence. They argued (and presented evidence to support the argument) that the Orleans Parish District Attorney’s office had a policy and
custom of withholding
exculpatory evidence. The lower court, however, ruled there was no triable issue of fact. On appeal, the Court of Appeals for the Fifth Circuit affirmed.

I hope the Court grants the petition because it would give the Court the opportunity to define the level of evidence needed to support a claim for civil rights violations by prosecutors due to violation of the duty to disclose exculpatory evidence. As the petitioners argue in their petition, this is an issue of national importance.

In Connick v. Thompson the Court held that the single incident of prosecutorial misconduct in withholding exculpatory evidence was not sufficient to create local government liability. The Court's conclusion was based on the finding that the plaintiff “did not prove a pattern of similar violations that would establish that the ‘policy of inaction’ [was] the functional equivalent of a decision by the city itself to violate the Constitution.” The Court, however, did not indicate what would be sufficient to establish a "pattern of violations" sufficient for a finding of a “policy” or “custom” with regard to the failure to turn over exculpatory evidence. This is the question the Court will have a chance to answer if it grants review.

Also, as I have argued many many times in this blog, I think courts do not do enough to discourage misconduct on the part of prosecutors. Recognizing a standard that could open the door to claims by exonerated defendants who suffer because of such misconduct would hopefully have a deterrent effect on what Judge Alex Kozinski recently called an “epidemic” of misconduct.